The first lawsuit for the release of Osama bin Laden's postmortem photograph has been filed by the conservative watchdog group Judicial Watch this morning. "This is arguably as important as any lawsuit we've filed," said Judicial Watch president Tom Fitton at a D.C. press conference on Friday.
According to the Judicial Watch complaint (which you can download as PDF here), the Department of Defense replied to Judicial Watch's FOIA on May 9, saying that it would not be able to produce the photographs in the timeframe specified by the FOIA law.
Judicial Watch claims that this response means it has "exhausted any and all administrative remedies with respect to its FOIA request" and that the Pentagon is "unlawfully withholding records." The group asks the Court to order the Defense Department to produce the bin Laden records it has requested.
Scott Hodes, a former Justice Department lawyer in the office of information and privacy, said Judicial Watch's suit runs the risk of being swiftly dismissed. "The government may still be deciding who is the proper agency to respond to the FOIA request. The Navy's not going to say 'yes, we'll give you the pictures' while the CIA says 'no, we're not,'" he told The Atlantic Wire. "We still don't know who's going to take the lead." Technically, the Department of Defense hasn't missed its deadline (even though its reply to Judicial Watch says it plans to). For that reason, it may make a motion to dismiss given that the 20-day statutory time period hasn't ran.
Judicial Watch filed its FOIA request to the Department of Defense on the Tuesday after the bin Laden raid in Abbottabad requesting "all photographs and/or video." It filed an identical request to the CIA last Wednesday. At the time, Judicial Watch president Tom Fitton told The Atlantic Wire, "Not wanting to 'spike the football' is not a reason to withhold basic information about this historically important raid." Judicial Watch has submitted over 300 FOIAs and gone to court over "about three dozen" different requests.
Other groups to submit FOIA requests for the photos include Politico, The Associated Press and conservative advocacy group Citizens United. NPR has followed this week. Those submissions contained similar language requesting "photographs and/or video recordings" taken during the raid.
Hodes is not optimistic about any of the FOIA requests succeeding. "I'd say there's a 90 percent chance they're not going to get anything at the FOIA administrative level," he said. Similarly, if it goes to court, he said the CIA could easily argue that its operation in Abbottabad is exempt from FOIA. "It's going to be very hard."
Others are more sanguine. “I think in time the photos will have to be released, regardless of President Obama’s present inclinations,” said Dan Metcalfe, who headed the Justice Department's office of information and privacy for more than 25 years. In an interview with the First Amendment Center, he said the CIA will have a difficult time arguing that a picture of bin Laden's dead body is sensitive material. “It is hard to imagine how the Department of Defense or the Central Intelligence Agency could classify that one image, in and of itself," he said.
Fitton said at his press conference on Friday that the Defense Department has 30 days to respond to today's suit. He said the group has submitted a similar request to the CIA, which has been showing the photographs to selected members of Congress. "This is basic information," he said. "We don't believe the Administration has a legitimate reason to withhold this information."